Preamble SAIRR (Response to Adv Budlender s legal opinion on the Constitutionality of SAIRR s Alternative Expropriation Bill ) Having taken ownership and possession of property by notice to the erstwhile owners, the Nxesi Bill makes it impossible for them to contest the validity of the expropriation by ousting the jurisdiction of the courts to rule on this key issue. Instead, it allows expropriated owners to contest only the adequacy of the compensation offered to them by the expropriating authority. The Nxesi Bill does not say in so many words that the courts may not rule on the validity of an expropriation, but the legal effect of expressly giving the courts the power to rule on the one issue only the compensation payable is the same. The relevant principle of legal interpretation is summed up in the Latin phrase, inclusio unius est exclusio alterius, which means that the inclusion of the one means the exclusion of the other. In addition, the 2013 version of the expropriation bill expressly allowed the courts to rule both on compensation and on any other matter, while the second clause giving them jurisdiction over issues other than compensation has been removed from the Nxesi Bill. To obviate the misinterpretation of Clause 21 (Determination by court) the Department proposes the following insertion in the Preamble to the Bill Whereas section 34 of the Constitution provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or where appropriate, another independent and impartial tribunal or forum. [The amendment of Clause 21 Determination by court should also be considered] Chapter 1: Definitions and Application of Act Clause 1: Definitions Additional definition Compensation Community Legal Resources Centre Legal Resources Centre Compensation means, in the case of compensation to a community, reparation and comparable redress which may include the provision of land and amenities to re-establish lively hoods and community and arrangements for community benefit sharing. Community means any group or portion of a group of persons whose rights to land are derived from shared rules determining access to land held in common by such group, where the right to land includes the use of, or access to land in terms of the customary law of the community or the custom, usage LRC s proposed definitions of Compensation and Community relate primarily to land reform. The Department is of the opinion that inclusion of such definitions would exclude other forms of community and thereby lead to unintended consequences. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 1
or practice in the community, and where the land in question at any time vested in the South African Development Trust established by section 4 (Act No. 18 of 1936); the government of any area for which a legislative assembly was established in terms of the Self-Governing Territories Constitution Act, 1971 (Act No. 21 of 1921); the governments of the former Republics of Transkei, Bophuthatswana, Venda and Ciskei; land to which the KwaZulu- Natal Ingonyama Trust Act, 1994 (Act No. 3 KZN of 1994); land to which the Transformation of Certain Rural Areas Act of 1998 applies, land acquired by or for a community whether registered in its name or not; and any other land, including land which provides equitable access to land to a community as contemplated in section 25(5) of the Constitution and the right or interest in land of a beneficiary under a trust arrangement in terms of which the trustee is a body or functionary established or appointed by or under an Act of Parliament or holder of a public office. Court means (a) a High Court; (b) a Magistrate s Court having competent jurisdiction, within whose area of jurisdiction a property is situated; or (c) in the case of intangible property SAPOA The definition should restrict the jurisdiction to the High Court, and only the High Court where the property is situated, except in the case of intangible property as in sub-clause (c). The original Expropriation Act, 1975 provided for magistrates to adjudicate on expropriation matters. However, this was later deleted because magistrates who presided over the compensation court were simply not competent to do the determination of compensation. The Bill is recreating the problems experienced in the original Act. It is recommended that sub-clause (b) be deleted and sub-clause (a) be amended by adding the words within whose areas of jurisdiction a property is situated. High Court: The Department agrees with the proposed amendment of the definition (a) a High Court within whose area of jurisdiction a property is situated; Magistrate s Court: The inclusion of Magistrates Courts was intended to enhance accessibility and affordability for litigants. In the light of the above, the Magistrate s Court s role is provisionally considered relevant until final legal advice is obtained. Additional definition Land SAPOA In a meeting with Deputy Minister Cronin (11 Aug 2015) Adv Gerrit Grobler SC (on behalf of SAPOA) proposed that the following definition for land (in addition to the definition of property ) be included in the Bill to obviate any misinterpretation Land includes a right in land. [Not included in SAPOA s written submission] The Department has requested legal counsel and the state law adviser to consider the matter and provide advice. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 2
Property is not limited to land and includes a right in such property Banking Association SA; SA of Race Relations; SA of Valuers; This definition is too broad and implies that the Bill relates to anything, tangible or intangible, and which is subject to a legal relationship between persons. The definition of property in the Bill is uplifted from Section 25(4)(b) of the Constitution, which states Property is not limited to land. The legislative intent in the Bill is to set enduring expropriation norms. The call to enumerate what constitutes property for expropriation purposes is misguided as it is impossible for legislation to foresee future events involving property in the wide constitutional sense. In any expropriation, property would be defined by the scope of the specific legislation that empowers such expropriating authority. [See attached schedule of National Legislation empowering expropriation // Meaning of property ] Public interest includes the nation s commitment to land reform, and to reforms to bring about equitable access to all South Africa s natural resources and other related reforms in order to redress the results of past racial discriminatory laws or practices. AgriSA; ethekwini Municipality; SA Geomatics ; Transnet; Section 25(4)(a) of the Constitution states public interest includes the nation s commitment to land reform, and to reforms to bring about equitable access to all South Africa s natural resources; Various comments argue that other related reforms in order to redress the results of past racial discriminatory laws or practices. could lead to confusion and legal challenges and should therefore be deleted. The addition of other related reforms in order to redress the results of past racial discriminatory laws or practices. to the definition of public interest as contained in section 25(4) of the Constitution is still in keeping with the Property Clause. This is further borne out by section 25(8) of the Constitution which states No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination Additional definition Land surveyor Similar to the definition of a valuer, and for the reason that land surveyors play an essential and fundamental role in the investigations for expropriation, the term land surveyor should be defined. Comment noted, however, no amendment to the text is required. The definition is also contained in the Land Survey Act. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 3
The definition of a land surveyor as contained in the Land Survey Act, 1997 (Act 8 of 1997) must be included in these definitions land surveyor means a person registered as a professional land surveyor in terms of the Professional and Technical Surveyors Act, 1984 (Act 40 of 1984), and whose name is entered in the register referred to in section 7(4)(a) of that Act. Additional definition Sketch Plan Clause 8(4)(b) and (c) refer to a sketch plan. The term sketch plan should be defined to ensure no confusion arises in respect of representation. Comment noted, however, no amendment to the text is required. sketch plan means a diagrammatic representation of an area of land at an appropriate scale, showing the extent, form, geo spatial position and description of the area of land or right in land, prepared by a land surveyor. Chapter 2: Powers of the Minister of Public Works to Expropriate Clause 3(1)(a) The Minister may, subject to the obligation to pay compensation which is just and equitable, expropriate property for a purpose connected with the execution of his or her mandate or upon request by an organ of state. SAIRR Webber Wentzel SAIRR: The Bill gives the Minister of Public Works an extraordinarily wide power to expropriate property upon request by an organ of state. In the alternative, the Bill gives him an additional power to expropriate for a purpose connected with his mandate. Webber Wentzel: 2.1 The Bill improves upon section 2 of the Act, in that clause 3(1)(a) is more specific about the "public purpose" for which the Minister may expropriate property, namely "for a purpose connected with the execution of his or her mandate", which is in turn is described as including "the provision and management of the accommodation, land and infrastructure needs of an organ of state". However, the inclusion of an alternative purpose for expropriation, namely "upon request by an organ of state", is ambiguous. The phrasing of clause 3(1)(a) has been reconsidered and the State Law Adviser advised a redraft in the following terms 3(1) (a) Subject to the payment of just and equitable compensation, the Minister may, in the execution of his or her mandate: (i) expropriate property; or (ii) expropriate property at the request of an organ of state 2.2 The mandate of the Minister already includes "the provision and management of the accommodation, land and infrastructure needs of an organ of state". These needs would invariably be communicated to the Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 4
Minister in the form of a request from the organ of state in question. Thus, the alternative purpose "upon request by an organ of state" is superfluous, unless it is intended to empower all organs of state to request the Minister to expropriate property for purposes other than their "accommodation, land and infrastructure needs". Clause 4(1) The Minister may either generally or in relation to a particular property or in relation to a particular case delegate or assign to an official of the Department any power or duty conferred or imposed on him or her in terms of this Act. Delegations should refer to a rank (position) and not to an official who may at any time resign, leaving a delegation vacuum. Reword by defining the rank (position) of the delegated official. This is the conventional drafting style of this type of clause. Issues of levels of authority of public officials are covered by the Public Service Act, 1994, its Regulations and Delegations of authority. Chapter 3: Investigation and valuation of Property Clause 5(1) Legal Resources Centre Proposed inclusion of new sub-clause (c) where land is held by a community or a community is the holder of an unregistered right in land, whether the community had agreed to (the)disposal of or expropriation of its right, whether provision has been made or will be made for reparation and compensation for the relocation of households and the dislocation of the community and its institutions, including (i) suitable alternative land (ii) alternative livelihoods; (iii) support to re- establish the community and its institutions (iv) community participation and benefit in the development of the property. The Department is of the opinion that the LRC s proposal has far reaching land reform implications which could result in a duplication of legislation and an encroachment on the DRDLR mandate. Clause 5(2) Legal Resources Centre Proposed inclusion of new sub-clause (c) (c) authorize a land rights enquiry and appoint a suitable person as an enquirer to investigate and report on the rights affected and the reparation and remedies proposed: Provided that a land rights enquiry shall include an investigation of and report on - The Department is of the opinion that the LRC s proposal has far reaching land reform implications which could result in a duplication of legislation and an encroachment on the DRDLR mandate. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 5
(i) (ii) (iii) (iv) (v) the nature and extent of all rights including constitutional and human; land and tenure; and competing or conflicting, rights, interests and tenure of land, whether legally secure or not which are or may be affected by the proposed expropriation; the options available for legally securing any legally insecure rights; the provision of access to alternative land on an equitable basis; the need for reparation and comparable redress and the nature and extent of such redress; provisions for the community to participate in and share in the benefits of any development on the land considered for expropriation.. Clause 5(4) The clause should be reworded and would suggest rewording in keeping with the proposed underlining: (4) The valuer or person with the necessary skills contemplated in subsection (2)(a) and (2)(b) may Comment is noted. It is recommended that the provision be retained in its current form. Clause 5(4)(d)(iii) Clause 6(1), 6(2)(c) and 6(4) Regarding obtaining information in respect of land use rights including zoning of the land, availability of engineering services to such land, or such other information with respect to the land a valuer is not competent to interpret such information and to ensure accountability and correctness it is suggested that same be done by a Land Surveyor who is trained and competent in respect of all rights in land. Clause 6(1) reads:. Request the municipal manager for the municipality where the land is situated to inform the expropriating authority of the effect which the purpose for which the property is being acquired may have on existing and future engineering services, infrastructure, housing and town planning. The property may only be used in accordance with its statutory zoning. Should the purpose for which the property is being acquired, not be in accord with its statutory municipal zoning, then the property may not be used for such intended purpose until such time that the property has been rezoned. Expropriation does not create or change land use rights ( purpose for which the property is being acquired). Comment is noted. It is recommended that the provision be retained in its current form. Clause 6(4) - Consider the following amendment: (4) In the event of the municipal manager failing to respond to a request contemplated in subsection (1) within the period contemplated in subsection (3), it shall be deemed that the purpose for which the property is being acquired would have no adverse effect on existing and future engineering services, infrastructure and housing and town planning. The Department is seeking legal advice from the State Law Adviser and legal counsel regarding the rephrasing of this clause. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 6
The Constitutional court case City of Johannesburg v Gauteng Development Tribunal (335/08) [2009] ZASCA 106 (22 September 2009) found that municipal town planning and powers to consider and approve applications for the rezoning of land and the establishment of townships are elements of municipal planning, and is an exclusive municipal function assigned to municipalities by section 156(1) of the Constitution and hence subject to the new Spatial Planning and Land Use Management Act which apply to all organs of state. It is therefore doubtful whether it would be possible, as proposed in Section 6(4) to deem that the purpose for which the property is being acquired would have no effect on existing and future town planning, should same not be in line with the Municipal zoning. Consider reviewing. Chapter 4: Intention to Expropriate and Expropriation of Property Notice of intention to expropriate Clause 7(2)(a) Webber Wentzel 3.1 While clause 7(2) of the Bill helpfully requires the expropriating authority to give the affected owners and holders adequate advance notice of its intention to expropriate and its reasons for doing so, it does not require any indication of the date on which ownership is intended to pass to the state, nor of the date on which possession is intended to pass to the state. To this extent, the clause falls short of ensuring the standard of procedural fairness demanded by the right to administrative justice enshrined in section 33 of the Constitution and codified in PAJA. 3.2 Section 3(2)(b)(iii) of PAJA requires that an affected person must be given "a clear statement of the administrative action", which necessarily requires as much clarity as possible regarding the time and manner in which the action is intended to unfold. In turn, the rationale for this intended time and manner of transferring ownership and possession will form part of "the reason for the intended expropriation of that particular property", included in the notice by virtue of clause 7(2)(d) of the Bill. Without this clarity, the affected owners and holders will be unable to make fully informed objections and submissions in terms of clauses 7(2)(e)(i) and (ii) of the Bill. The Department is seeking legal advice from the State Law Adviser and legal counsel regarding the rephrasing of this clause. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 7
Clause 7(4)(a) SAPOA In a meeting with Deputy Minister Cronin (11 Aug 2015) Adv Gerrit Grobler SC (on behalf of SAPOA) proposed that Clause 7(4)(a) be amended as follows the amount claimed by him or her as just and equitable compensation should he or she be expropriated and furnishing full particulars as to how the amount is made up; [Not included in SAPOA s written submission] The Department agrees and proposes the following amendment of Clause 7(4)(a) the amount claimed by him or her as just and equitable compensation should he or she be expropriated and furnishing full particulars as to how the amount is made up; Notice of expropriation Clause 8(3)(d) and (e) Webber Wentzel 4.1 The Bill does not give expropriating authorities any guidance regarding the appropriate timeframe for the transfer of ownership and possession, thus vesting them with unilateral and unfettered discretion to make this crucial determination. This is inconsistent with the constitutional separation of powers, a critical aspect of which was articulated as follows by the Constitutional Court in the leading Dawood decision: The Department is seeking legal advice from the State Law Adviser and legal counsel regarding the rephrasing of this clause. In a constitutional democracy such as ours the responsibility to protect constitutional rights in practice is imposed both on the legislature and on the executive and its officials. The legislature must take care when legislation is drafted to limit the risk of an unconstitutional exercise of the discretionary powers it confers It is for the legislature to ensure that, when necessary, guidance is provided as to when limitation of rights will be justifiable. It is therefore not ordinarily sufficient for the legislature merely to say that discretionary powers that may be exercised in a manner that could limit rights should be read in a manner consistent with the Constitution in the light of the constitutional obligations placed on such officials to respect the Constitution. Such an approach would often not promote the spirit, purport and objects of the Bill of Rights. Guidance will often be required to ensure that the Constitution takes root in the daily practice of governance. 4.2 In failing to provide guidance regarding the timeframe for transferring ownership and possession, the Bill is no better than the Act. Indeed, it is somewhat worse, for one obvious reason: the open-ended discretion in Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 8
the Act is at least logically understandable (though not constitutionally justifiable) by virtue of the fact that the Act contains no separate scheme for urgent expropriation; the Bill, however, does, in clause 22, and thus there is no reason to reserve a wide discretion in circumstances that are not urgent. As was held in Dawood, it cannot be said "that there is any legislative purpose to be achieved by not supplying such guidance at all". 4.3 Accordingly, the Bill should prescribe at least a minimum period between the notice of expropriation and the transfer of ownership, and a maximum period between the latter and the transfer of possession. To mitigate any undue rigidity that may result (despite the availability of urgent expropriation), the Bill could give the expropriating authority a modest discretion to deviate from the prescribed periods in extenuating circumstances. Clause 8(4)(b) and (c) Registration of a portion of an existing land parcel takes place by way of the deduction of the subdivided portion from the parent property. To enable same, a subdivisional diagram must be framed by a land surveyor. Comment is noted. Implicit in the current provision is the knowledge that the required act(s) must comply with the Land Survey Act. Reword subsection (b) and (c) to read as follow: It is recommended that the provision be retained in its current form. (b) in the case where the expropriation applies to a portion of a land parcel, a survey diagram which diagram is suitable to be approved by a Surveyor- General, showing position of such portion in relation to the whole; (c) in the case where the expropriation applies to a right in land, a survey diagram which diagram is suitable to be approved by a Surveyor-General, showing the position of the right in land on such land, unless the right in land is accurately described without such survey diagram. Vesting and possession of expropriated property Vesting and possession of expropriated property Clause 9 Clause 9 read together with Clause 8(4)(b) and (c) above creates the possibility to simply vest or take possession of a portion of a property. Furthermore, no mention is made of the transfer and registration of expropriated immovable property (be it a portion of a property or the whole of the property) in the Deeds Registry. Also, in the rest of the Bill, as far as can be determined, no specific mention is made of an obligation to transfer and The Deeds Registries Act, 1937 deals meticulously with the issue raised. Property registration matters should not be addressed in the Expropriation Act. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 9
register the expropriated land (immovable property) into the name of the State, juristic person or expropriating authority. Should no such obligation exist in the Act, there is a real possibility of subverting the cadastre, to the extent that it would not be current in its reflection of real rights, and as such would weaken security of tenure. A specific section should be created which section should make it compulsory that a land surveyor be appointed to undertake all the necessary steps such that a partial expropriated property could conceivably be registered by way of a separate title, and that in general, all expropriated property be registered in the Surveyor-General s office and the Deeds Registry. It is recommended that the provision be retained in its current form. However, the matter could be addressed through appropriate cross-references to the Land Survey Act and Deeds Registries Act in the Regulations. Chapter 5: Compensation for Expropriation Determination of compensation Clause 12(1)(e) and 12(2)(b) Clause 12(1)(e) and 12(2)(b) reads: 12.(1) The amount of compensation to be paid to an expropriated owner or expropriated holder must be just and equitable reflecting an equitable balance between the public interest and the interests of the expropriated owner or expropriated holder, having regard to all relevant circumstances, including - (a) the current use of the property (b) the history of the acquisition and use of the property; (c) the market value of the property (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property and (e) the purpose of the expropriation. 12.(2) In determining the amount of compensation to be paid in terms of this Act, the expropriating authority must not take account of (b) the special suitability or usefulness of the property for the purpose for which it is required by the expropriating authority, if it is unlikely that the property would have been purchased for that purpose in the open market; Clause 12(1)(e) requires that the purpose of the expropriation be taken into account when determining the amount of compensation. However, the Clause 12(2)(b) states that the special suitability or usefulness of the property should only be excluded if it is unlikely that the property would have been purchased for that purpose in the open market. It is recommended that the provision be retained in its current form. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 10
purpose of the expropriation cannot be separated from the intended suitability, use or usefulness of the property. Clause 12(2)(b) contrarily states that when determining the amount of compensation to be paid, the special suitability or usefulness of the property for the purpose for which it is required by the expropriating authority should not be taken into account. This is a contradiction. The expropriating authority cannot have it both ways. Strike Clause 12(2)(b) Clause 12(2) In determining the amount of compensation to be paid, the expropriation authority must also take account of consequential loss resulting from the expropriation, moving costs and costs due to any loss of future income. Reword by adding additional consideration. Clause 12 (1) echoes s25(1) of the Constitution. The use of the words having regard to all relevant circumstances adequately addresses the issue raised by. Compensation claims Clause 14(2)(a) Whenever a property is encumbered by a registered mortgage bond, the title deed is held by the bondholder, which is in most cases banking institutions. In the case of a bonded property, it will be most unlikely that the expropriated owner will know the particulars of the name and address of the person in whose possession or under whose control the title deed is. This reference to person includes both natural and juristic persons. Refer to definition of person in section 2 of the Interpretation Act 33 of 1957 Reword sub-clause (a) (a) the the expropriated owner must deliver or cause to be delivered to the expropriating authority, subject to section 25, within 30 days of the expropriating authority requesting, the title deed to such land or, if it is not in his or her possession or under his or her control, written particulars of the name and address of the institution or person in whose possession or under whose control the title deed is; and Offers of compensation Clause 15(3) (3) Unless the expropriating authority and the claimant have Webber Wentzel 6.1 This clause is derived from section 10(5)(a) of the [Expropriation] Act, and is regrettably inconsistent with the guarantee in section 25(2(b) of the Constitution that property may not be expropriated without being "subject to compensation, the amount of which and the time It is recommended that Clause 15(3) be amended by placing the responsibility on the expropriating authority to approach the court to decide or approve the compensation offered to the Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 11
agreed otherwise, the latter must be regarded to have accepted the compensation offer made to him or her by the expropriating authority, as contemplated in subsection (1), if he or she fails to institute legal proceedings for the determination of the compensation before a date stipulated by the expropriating authority by written notice delivered on the claimant, provided that the said date may not be a date earlier than 60 days from such notice. and manner of payment of which have either been agreed to by those affected or decided or approved by a court". The plain language of this provision requires that, in the absence of agreement on compensation, the state must have its offer "approved by a court". 6.2 Clause 15(3) would circumvent this guarantee by requiring expropriated owners and holders to bear the burden, inconvenience and cost of approaching a court, simply in order to register the fact that the state's compensation offer has not "been agreed to by those affected". In these circumstances, the acceptance of the state's offer is not obtained freely and fairly, and thus the clause cannot be constitutionally permissible. Indeed, the Constitutional Court has repeatedly rejected similar arrangements in respect of other rights, even without an explicit guarantee of court oversight in the absence of agreement. expropriate should no agreement be reached within a period of 60 days from the notice contemplated in clause 15(1). The effect will be that the claimant will have more time to consider whether to either accept the expropriating authority s offer of compensation or to contest that offer in Court. The Department is seeking legal advice from the State Law Adviser and legal counsel regarding the rephrasing of this clause. Clause 15(1) and (3) The expropriating authority s offer referred to in Section 15(1) must draw attention to the consequences of section 15(3) i.e. that if the claimant fails to institute legal proceedings within a period of 60 days that it will be deemed that the claimant have accepted the compensation offer made by the expropriating authority. Reword Clause 15(1) to provide an obligation to draw attention to same. In view of the recommendation that Clause 15(3) be amended to place the responsibility on the expropriating authority to approach the court for the determination of compensation should no agreement be reached with the claimant, this proposal is moot. Chapter 6: Determination by Court, Urgent Expropriation and Withdrawal of Expropriation Determination by Court Clause 21(1) SAIRR (Response to Adv Budlender s legal opinion on the Constitutionality of SAIRR s Alternative Expropriation Bill ) Having taken ownership and possession of property by notice to the erstwhile owners, the Nxesi Bill makes it impossible for them to contest the validity of the expropriation by ousting the jurisdiction of the courts to rule on this key issue. Instead, it allows expropriated owners to contest only the adequacy of the compensation offered to them by the expropriating authority. The Nxesi Bill does not say in so many words that the courts may not rule on the validity of an expropriation, but the legal effect of expressly giving the courts the power to rule on the one issue only the Over and above the proposed insertion of a reference to Section 34 (Access to courts) in the preamble to the Bill, the Department proposes that Clause 21 be amended to obviate any misinterpretation, through the insertion of the following sub-clause Subsection (1) does not preclude a person from approaching a court on any other matter relating to the application of this Act. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 12
compensation payable is the same. The relevant principle of legal interpretation is summed up in the Latin phrase, inclusio unius est exclusio alterius, which means that the inclusion of the one means the exclusion of the other. In addition, the 2013 version of the expropriation bill expressly allowed the courts to rule both on compensation and on any other matter, while the second clause giving them jurisdiction over issues other than compensation has been removed from the Nxesi Bill. [This proposal constitutes a return to the draft Bill published for public comment in 2013 - Clause 22(2)] Clause 21(2)(b) This section read together with Clause 15(3) places the expropriated owner at risk of a litigation cost order. This is an untenable position of having merely 60 days to decide the prospects of success with the accompanying risk of the cost order. Individuals without abundant financial resources will have no practical choice but to accept whatever the expropriating authority offers, hence unfairly limiting court review. Clause 21(2) should be reviewed or deleted. Comment is noted. The requirements of these provisions do indeed appear to be burdensome to the expropriatee. [It is recommended that Clause 15(3) be amended by placing the responsibility on the expropriating authority to institute legal proceedings for the determination of compensation should no agreement be reached within a period of 60 days from the notice contemplated in clause 15(1)] Chapter 7: Related Matters Service and publication of documents and language used therein Clause 24(1)(c)(i) It will not be sufficient to simply allege that the whereabouts of the person concerned are unknown to the expropriating authority and is not readily ascertainable. Due diligence must be provided that a serious attempt had been made to ascertain the whereabouts of the persons concerned. Comment is noted. Matter could be addressed in the Regulations. Either in the Act or in the regulations, provision should be made for the proof of efforts made to ascertain the whereabouts of persons concerned, accompanied with a supporting affidavit. Clause 24(2)(b) No mention is made of the size of the placard notice, the maintenance thereof or proof of maintenance. The term conspicuous should be elaborated on i.e. it must be publicly visible and in an easily accessible position. Comment is noted. Matter should be addressed in the Regulations. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 13
Either in the Act or in the Regulations, provision should be made to define the size of the placard notice and the provision of proof of maintenance of the notice in a conspicuous and to the public accessible place, for the specified period. Expropriation Register Clause 26(1) The Surveyor-General s Offices is in charge of property descriptions and changes to same over time. To introduce an expropriation register by the Department of Public Works, which might in addition not have the property description as its key, will create a replicated system (and costs) introducing confusion and may in time, as properties are renumbered, become very difficult to work with. The introduction of the Expropriation Register is intended as both a measure to promote effective and efficient administration, as well as accountability by enabling any member of the public to access information that affects them. For various practical reasons, it makes sense to have the expropriation register (at least for finalized expropriations) in the Surveyor-General s Offices as a type of unregistered right and be in charge of same, until such time that vesting or subdivisions are done. Expropriation Bill [B4-2015] DPW s response to Comments (2015-08-25) Page 14